New replacement Law for Ley 57/68?

I've tried searching the site for this a recent thread on this subject but couldn't find much.

Anyway, as some of you know, the Law 57/1968 is being replaced with a new one on 1st January 2016. Obviously, it will be called something else, like ../2016.

Can someone direct me to the previous thread, so we can keep most of the discussion in the same one?

Thanks.

The new law covering payments for off-plan properties is the Ley de Ordenación, Supervisión y Solvencia de las Entidades  Aseguradoras y Reaseguradoras (Law of Management, Supervision & Solvency of Insurers and Re-Insurers - LEY 20/2015 dated 14 July 2015.  It takes effect from 1 January 2016 and amongst many other issues will also cover all new off-plan property deposits paid from 1 January 2016 onwards.

It amends the First Additional Provision of LEY 38/1999 (the Building Act/Construction & Planning) regarding the amounts paid in advance for off-plan properties and also amends Article 19 of LEY 38/1999 regarding guarantees to the buyer.

LEY 20/2015 repeals LEY 57/1968.

All off-plan property deposits paid prior to 1 January 2016 will still be covered by LEY 57/1968.

It has to be said that LEY 57/1968 offered more protection to the off-plan buyer than LEY 20/2015 as it covered payments made prior to the issuing of the Building Licence.  This was important as many off-plan developers were selling off-plan properties and taking deposits long before the building licence was granted.

From 1 January 2016 onwards you MUST instruct a conveyancing Lawyer to act for you immediately you decide to buy an off-plan property and prior to paying any deposit to the developer.


 

Thank you Keith.

Doesnt this logic make the assumption that all conveyancing lawyers act with due diligence and in the best interests of their clients, and history has identified sadly that this is not always the case? So doesn't this still leave those purchasers who are not knowledgeable of the law and wrongly "allowed" to make payments prior to issuance of licences at risk? If this was to occur and they subsequently became compromised would the law protect them from such professional negligence within a timeframe similar to actioning a BG i.e. within 30 days or would they be left with a lengthy negligence lawsuit, which once again would be subjected to lack of case law?

I have been reading Law 20/2015 again today. I honestly find it very right and same protective as Law 57/68.

The only weaker point for the buyer might be that deadlines are reduced to 2 years after breach of contract by developer. But, considering buyer is someone who has advanced payments for his own dwelling or holiday house, as he will be constantly monitoring the building process, two years will be more than enough for the request to be made after the breach.  

Positive aspects:

- It establishes that Guarantees come into force from the moment Work License exist. This is clearly disausive for buyers to risk money before Work License exist.

- It keeps maintaining Banks as safeguards of the system as if guarantees do not exist, they are liable

- It gives 30 days to both developer and guarantoor for the refund of amounts since these being requested by buyer.

- It keeps publicity obligations about Insurer/ Guarantoor and Special Account ( Publicity has contract nature)

- It keeps administrative sanctions to developers due to lack of guarantees

In my opinion it is very  healthy that every financial transaction made prior to existence of Work License is left out of the guaranteeing system. Healthy for Banks, developers and buyers all together.

It is also healthy that claim deadlines are shorter as this will discriminate, real, attentive buyers to those who are not.

Maria, I am confused.

How can it be healthy for those clients not knowledgeable of the law, who in all good faith instruct a conveyancing lawyer to act on their behalf who subsequently allows the client to wrongly deposit monies prior to issuance of licence and significantly compromises them in that process?

Under this new system, if such an act of failure of due diligence by that professional was to occur ( as has happened in the past on all too many occasions with regards to failure relating to issuance of BG's and ensuring deposits were placed into secure accounts) , where the lawyer did not act in the best interests of the client, wouldn't this leave the client at great risk without an immediate GUARANTEE  in place for return of monies from the professionals legal indemnity insurance, so how can this be healthy?

In theory, yes this should be healthy, where the assumption is made that all conveyancing lawyers are reliable, trustworthy and act accordingly, but sadly this has not been the case in Spain, so until such time as the Bar Association take strict action to enact adequate disincentives to members who bring their profession into disrepute, there will always be an outstanding risk to innocent clients who believe that a swift and fair guarantee system is in place to protect. 

Likewise as I have stated on another thread, it is unhealhty for the judiciary to generalise and make assumptions that clients who delayed seeking justice were not real attentive buyers, without due regard to their understandable major concerns and reticence to proceed with claims, until such time as good and consistent case law (across regions) with Supreme Court rulings in place to back their legal challenges, was established.

It saddens me to have to think this way, but effective regulatory bodies are an essential prerequisite in Spain given the uncomfortable realities, and until such time as this is recognised then any change to laws in place to protect will leave purchasers vulnerable.

Good independent conveyancing lawyers. Key point. Client needs to instruct carefully.

I am seeing same schemes again: buyers chosing the lawyer of the agent/ Bank/ seller....

Of course stronger punishment by Bar associations is also necessary

Are you also still witnessing clients being compromised as a consequence of lack of due diligence from the  non independent lawyers, Maria? If so are these instances being consistently reported in writing to the Bar Associations, so as to place on record for further monitoring by an independent source if this proves necessary?

Having read Keith's recent update on his ongoing Finca Parcs case and seeing how the Banks are running roughshod over the justice system in Spain (and having no humility or ethical standards given the identical circumstances that Keith has identified) then this together with lack of effective disincentives from the Bar Associations to bring non independent lawyers in Spain to account whenever they compromise innocent purchasers in this way,  together with  the recent change in the law, perhaps now is the time to state categorically to all potential purchasers DO NOT BUY OFFPLAN PROPERTIES IN SPAIN.

Ads:

I cannot see how these lawyers are developing their work but, by principle, if they receive clients from the seller ( Bank, Agent) they are breaching the principle of avoiding conflict of interest.

Clients I am refereing to are not buying off-plan but built houses owned by Banks

Kindest,

María